In Victoria’s Court of Appeal last Friday, an encounter unprecedented in Australian legal and political history played itself out. Through the Commonwealth Solicitor-General (SG) three Commonwealth Government Ministers made an abject apology to the Court.

The apology related to highly critical, ill informed, and unsubstantiated comments the three ministers had made in the media about the Court and its conduct of a case before it. They apologized because, had they not, they were in real danger of being referred for contempt. The three judges, to say the least, had been unimpressed by the ministers’ highly political intervention in a significant judicial proceeding.

The Court of Appeal, consisting of Chief Justice Warren, Justice Weinberg and Justice Kaye, had been hearing appeals against sentence with respect to two young men who had been convicted of serious terrorism offences. The Commonwealth Director of Public Prosecutions had lodged the appeals on the ground that the length of the sentences imposed by the trial judge had been inadequate. The judges had reserved their decisions on the appeals.

The ABC ran a story on the cases in which it reported that there had been an interchange between the Bench and Bar concerning differential sentences that had been handed down to individuals convicted of terrorist offences in NSW and Victoria. A suggestion had been made that sentences had been heavier in NSW. In discussion in the case, the Chief Justice had described this apparent discrepancy as troubling.

The present episode began when at 12.36 pm on June 9th a journalist at The Australian, Simon Benson, received by text a statement from the Minister for Health, Greg Hunt. In that statement the minister said: ‘Comments by senior members of the Victorian courts endorsing and embracing shorter sentences for terrorism offences are deeply concerning …The state courts should not be places for ideological experiments in the face of global and local threats from Islamic extremism.’

At 12.43, Michael Sukkar, Assistant Treasurer, sent another text. “It is attitudes of judges like these which have eroded any trust that remained in our legal system. Labor’s appointment of hard-left activist judges has come back to bite Victorians.’

At 1.42 pm Alan Tudge, Minister for Social Services, chimed in. ‘Some of these judges are divorced from reality. We have a crisis on our hands with people who want to kill indiscriminately and yet some judges seem more concerned about the terrorists than the safety of the community’.

It was apparent from the timing of the communications that the Ministers had acted in concert. One presumes, therefore, that they had given some thought to what was to be said and why. Although all three ministers had legal qualifications, it rapidly became apparent to them, from the Court’s reaction to their remarks, that they had given all too little thought to the legal consequences that might follow from their coordinated critique.

The Court of Appeal ordered all three to appear before the Court to explain why they should not be referred for the criminal offence of having acted in contempt of court. In her opening remarks, the Chief Justice explained clearly the problem that had arisen:

‘Given that the Court’s decisions in both cases were pending, the Court was concerned that the attributed statements were impermissible at law and improperly made, in an attempt to influence the Court in its decision. Further, the Court was concerned that some of the statements were calculated to improperly undermine public confidence in the administration of justice in this State, in respect of the disposition of the appeals that the Court has presently under its consideration…The statements, on their face, failed to respect the doctrine of the separation of powers, breached the principle of sub judice, and reflect a lack of proper understanding of the importance to our democracy of the independence of the judiciary from the political arm of Government’.

The separation of powers is a dominant doctrine in Australian constitutionalism. It provides for the institutional separation of the three principal branches of government – the parliament, the executive and the judiciary. The Constitution confers on each of these branches of government a particular and different kind of power, that is, legislative power, executive power and judicial power respectively.

The doctrine also makes it clear that it is constitutionally impermissible for any one branch of government to exercise the power of another, or to dictate to or exercise improper influence upon another. It is with this third principle that the Court was concerned in this instance.

The sub judice principle exists to protect the judiciary from improper influence in the exercise of its judicial functions. The principle provides that it is impermissible for either of the other branches of government to seek to influence the outcome of a case before a court while that case remains on foot. That is precisely what was at issue here. The Court had formed the preliminary view that the three ministers’ coordinated attack upon it constituted an improper attempt to sway its judgment in the appeals.

There was no doubting the seriousness of the matter from the Bench’s perspective:

SG: …it’s not particularly surprising to find politicians responding to statements made in the media.

Weinberg J: Not common to find them making these sorts of statements when a case is before the Court and is reserved of that … We haven’t seen many examples of that.

SG: No

Kaye J: I have never seen any in more than 40 years in the law. This is the first time I have ever seen it.

Warren CJ: And I would join with Kaye J. on that comment.

Weinberg J: I might add a few more years than 40.

The sub judice principle has a second branch. That is that contempt may be constituted by statements that ‘scandalise the court’. This means that a contempt may be committed if the statements made are likely to prejudice the administration of justice or to erode public confidence in the court’s independence and impartiality.

There seemed to be ample evidence that the Court of Appeal here had been scandalised in the sense described.

Kaye J: In the context of a case which is sub judice, saying of the Court that is determining the case, that it is driven by ideological lines of reasoning rather than legal reasoning, why would that not diminish public confidence in the judiciary and the judicial system?

Warren CJ: I would add to that, using the expression such as hard-left activist judges.

The Court was signaling that a referral for contempt for breach of the sub judice rule was highly likely. This was not only because of the legal points. The ministers had also critically, factually weakened their own position.

In the first place this was because it had emerged during submissions that the ministers had relied solely on a short ABC media report of the Court’s proceedings to found their criticisms. They had failed, almost entirely, to properly inform themselves of what had actually happened in the Court. They had not, for example, either requested or read a copy of the transcript of the proceedings. Inevitably, therefore, their interpretation of the court’s deliberations had been formed out of context.

Weinberg J: So, again, they were simply speaking without any appreciation of the kinds of complex issues that were before the Court?

SG: They were undoubtedly speaking in a situation where they were aware of only a small subset of what had happened…”

Weinberg J: So, they’re speaking in total ignorance?

SG: Well, they were speaking in response to what they knew from a press report.

Weinberg J: Well, that sounds to me like total ignorance.

SG: Well, it’s certainly less than a total picture.

Even more importantly, and despite this, when the Solicitor-General appeared before the Court to explain the ministers’ position, he said that he had been instructed to express their regret for couching their criticisms with insufficient precision. In response to intense questioning from the Bench, however, the Solicitor-General agreed that the ministers had neither retracted their statements nor apologized for them. He was met with visages of stone. Soon after, in remarkable scenes, all three ministers informed their legal counsel that certain of their comments were forthwith withdrawn. Critically, however, no apology was forthcoming.

The abject apology came one week later just before, as the Chief Justice noted, the Court had intended to refer all three ministers for contempt. The prior absence of an apology, she said, had only aggravated the contempt. Having considered the retractions and finally received the apologies, the Court decided to take no further action.

The ministers’ embarrassment and relief was acute. The Court’s strong defence of the separation of powers in general, and judicial independence in particular, had been justified and assured. The Court had struck a small but significant blow for the maintenance of pluralistic, democratic governance

Spencer Zifcak is the Allan Myers Professor of Law at the ACU and Acting President of Liberty Victoria.

In reference to the Chief Justice’s comments. If attempting to influence the court in its sentencing decisions is ‘impermissible in law”, then how are victim impact statements, pre-sentence reports and other testimony from experts, which are requested when matters are still sub judice and specifically designed to have an influence on sentencing decisions, permissible in law? When, as in the case of terrorism, the victim is the wider community, why should not representatives of the community, the elected members of the Parliament be allowed to make impact statements that reflect legitimate concerns of the community over the disposition of convicted persons. And if that principle of impermissibility were to be strictly enforced, would not all reportage of crimes in the media, particularly crimes of an atrocious nature, have to be prohibited.

As to the notion that is it “constitutionally impermissible” for one branch of government to influence another: for a start it would be absurd to imagine that the Legislative branch of the Australian government does not influence the Executive Branch as they are drawn from the same group of people who alternately sit in Cabinet and sit in the Houses of Parliament. The operations of the Executive and Public Service, are inextricably entwined with decisions made in the Parliament. What do we imagine is going on when a Senate Estimates Committee interrogates Ministers and public servants at length about their actions?

Secondly, in any case, it is an anachronistic fantasy to imagine the Judiciary is a branch of government. Judges are not elected and have now power to pass laws. Essentially the courts are a branch of the public service that shares the same status as the police, the army, Departments of Health, Education, Customs and other agencies. Like those agencies it is paid for out of tax payers funds, appointed by the government and ultimately accountable to Parliament to fulfil the role assigned to it which is to be one part of a three-part system of law enforcement. Notably, the other two parts, the Police and Correctional Services can legally be criticised.

The question that matters is of course the question of independence. The concept of anyone in power, elected or not, being able to influence a court to find someone guilty or not guilty is unthinkable. In the same way, the notion of a politician being able to tell a doctor how to perform an operation is equally unthinkable. However, if a doctor’s patients appear to be dying from improper treatment, that doctor can be suspended, investigated, fired or even charged with criminal negligence. In other words, the independence of the medical practitioner and the doctor-patient relationship is still conditional upon the doctor providing the service they are engaged to provide, i.e. to be a benefit to the community.

If a judge’s sentencing decisions fail to benefit the community, there is no reason why their actions should not be similarly questioned.

The reality is that sentencing is a different sort of procedure to the finding of guilt or innocence. Judges, as mentioned above, typically request and receive advice from a variety of people before making sentencing decisions because sentencing in not based on a knowledge of law alone. Indeed suggestions have been made that, because of judges’ inexperience in assessing the likelihood of offenders re-offending, sentencing should be taken out of their hands and dealt with by specialist sentencing tribunals. It is not known whether this would be an improvement but the notion itself is an acknowledgement that a different skill set is involved.

Finally, the separation of powers argument and the issue of independence is largely irrelevant because the threat of contempt of court can be levelled at any citizen who openly criticizes the court. This notion that respect for the court and the judicial system supersedes all over considerations (such a freedom of speech) is uncomfortably reminiscent of prelates who placed the reputation of the Church above justice for victims of abuse. The use of Contempt of Court to shield judges from criticism is itself contemptible.

Ian, I think that your “outrage” would have been far better applied to something really important instead of the very minor issue of three mouseketeers who, when challenged for being smart arses, went completely to water. Curious also that the mouseketeers’ comments were reported in The Australian and not, for example, in The Age, or the Canberra Times.

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